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2009 Supreme(Guj) 733
IN THE HIGH COURT OF GUJARAT
Akil Kureshi, J.
Anvarbhai Rasulbhai Sanghvani & Others - Applicants
Versus
Mumtazben W/o Anvarbhai Sanghvani & anr. - Respondents
Special Criminal Application No. 2410 of 2009
Decided On : 08-12-2009
For the Applicants :Premal S. Rachh, Advocate
For the Respondent: L.R. Poojari, APP.
Headnote:
Protection of Women Domestic Violence Act, 2005 - Sections 21 and 23 - Hindu Minority and Guardianship Act, 1956 - Sections 6 and 13 - Petitioners have challenged an order passed by learned Additional Sessions Judge, Petitioner No. 1 is the husband of original complainant, respondent No. 1 herein. Petitioner Nos. 2 and 3 are other family members. Respondent No. 1 has instituted proceedings - Held, Elaborate provisions have been made under the Act to grant meaningful and effective protection to a woman against domestic violence. Number of orders which are ancillary or incidental to and essential to make such protection meaningful are also provided under various provisions noted herein above. Custody of minor children of an aggrieved woman is one such order which a Magistrate can pass under Section 21 of the Act. As per Section 23 of the Act, such an order can be passed as an interim order or even as an exparte adinterim order. Power of a Magistrate under the Act reading Section 12(1) with Section 18(g), which permits the Magistrate to pass any order prohibiting the respondent from committing any other act as specified in the protection order, is very wide. The legislature by making special separate provision for custody of minor children under Section 21 of the Act has put the matters beyond doubt. It can thus be seen that power of Magistrate under Section 21 of the Act is of great importance. This is further emphasised where under Section 23(2) of the Act, the Magistrate is empowered to pass any order under Section 21 not only as an interim order, but also as an exparte adinterim order - Petition dismissed
JUDGMENT :
Akil Kureshi, J.
Petitioners have challenged an order dated 24.11.2009 passed by learned Additional Sessions Judge, Jamnagar in Criminal Appeal No. 29/2009. By the said order, the learned Judge was pleased to reverse the order dated 27th August, 2009 passed by the learned Additional Senior Civil Judge and JMFC, Jamnagar.
2. Petitioner No. 1 is the husband of original complainant, respondent No. 1 herein. Petitioner Nos. 2 and 3 are other family members. Respondent No. 1 has instituted proceedings under the Protection of Women from Domestic Violence Act, 2005 (herein after referred to as 'the Act'). She also moved an application for interim directions in terms of Sections 20 to 22 of the said Act. One of her prayers was for custody of her three years old son. Learned Magistrate by his order dated 27.08.2009, though granted interim maintenance to the complainant, refused to hand over the custody of the child to her. She, therefore, filed Criminal Appeal. By the impugned order, learned Additional Sessions Judge granted the request, hence the petition.
3. Learned Magistrate primarily was influenced by the fact that the petitioner No. 1 and other family members work from home and therefore, are able to take care of the child and if the custody of the child is handed over to mother, the child would have to be uprooted from his school, which would be detrimental to him.
On the other hand, learned Additional Sessions Judge was of the opinion that child being of tender age, mother should be allowed to look after him. Reliance was placed on certain decisions of this Court and other Courts.
4. At the outset, it may be clarified that this petition is directed against the order for custody of child and not for interim maintenance.
5. Learned advocate for the petitioners submitted that the Sessions Court has not appreciated all the facts in proper perspective. There was no error in view of the learned Magistrate. Before the protection Officer, no request for custody of the child was made. His report was therefore silent on this aspect. It was contended that powers under Section 21 of the Act are only for passing interim order. It was also contended that against the father and other members of the family of respondent No. 1, there are criminal cases. Child is already studying in a school and should not, therefore, be disturbed.
6. Section 6 of the Hindu Minority and Guardianship Act, 1956, reads as under:
"6. Natural guardians of a Hindu minor. The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are
(a) in the case of a boy or an unmarried girl the father, and after him, the mother : provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in case of an illegitimate boy or an illegitimate unmarried girl – the mother, and after her, the father;
(c) in the case of a married girl – the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation : In this section, the expression "father" and "mother" do not include a stepfather and a stepmother."
Section 13 of the Hindu Minority and Guardianship Act, 1956 reads as follows:
"13. Welfare of minor to be paramount consideration. (1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor."
It can thus be seen that while dealing
